ORDER

This Miscellaneous Appeal is filed by the defendants under Order 43 Rule 1 (d) of the Civil Procedure Code 1908 being aggrieved of order dated 21/11//2017, Annexure A-1, passed by the learned Additional Judge, Singrauli to the Court of First Additional District Judge, Singrauli, Headquarters Waidhan in Miscellaneous Civil Case No. 76/2017 wrongly mentioned as Miscellaneous Civil Criminal Case by learned counsel for the appellant whereby the court concerned has refused to entertain an application under Order 9 Rule 13 C.P.C.

read with Section 41 and 44 of the Evidence Act along with an application under Section 5 of the Limitation Act for setting aside an ex parte judgment and decree dated 13/03/2009 passed in Civil Suit No. 2-B/2008.

Brief facts leading to the Miscellaneous appeal are that a civil suit for recovery of Rs. 60,000/- along with interest and notice charges were filed by the plaintiff stating that the plaintiff and defendants husband were working together at N.C.L. Jayat project and plaintiff had lended the said amount on account of certain recoveries which were made against the defendants being the second wife of late Bhariya Uraon.

This suit was decreed. An ex parte judgment and decree was passed on 13/03/2009 believing the report of the notice server. According to the defendant/appellant, he was acting in collusion with the respondent/plaintiff.

Thereafter, the plaintiff/respondent started execution proceedings when appellant/defendant came to know about ex parte proceedings against her when she appeared before the Executing Court and obtained relevant documents moved an application under Order 9 Rule 13 C.P.C. read with Section 41 and 44 of the Evidence Act along with an application under Section 5 of the Limitation Act but that is not entertained, hence this Miscellaneous appeal.

Learned counsel for the appellant submits that the impugned order is without application of mind. There is an allegation that the appellate court failed to call the process server in the witness box to record his statements and wrongly believed his report regarding refusal of summon by the appellant and overlooked the crucial aspect that in the said report, there is no signature of panch witness in the locality. The allegation is that the court below has not considered the provisions of Order 5 Rule 17 and Rule 19 C.P.C. properly and has passed the impugned order.

Nobody is appearing for the respondent. Though, name of the counsel is mentioned in the cause list.

A perusal of the order reveals that the suit was instituted on 5/01/2008.

On 26/02/2008, an adult daughter of defendant Pinky had received the summons but had refused to sign the summons, as a result, summons were again issued. There is a report of the process server dated 29/01/2008 that defendant/appellant had accepted the summons but she had not signed the report. Pinky was unmarried adult daughter of the defendant/appellant. It has also come on record that on 8/10/2008, defendant was present but she has refused to accept notice. Witness Rameshwar had signed in support of this contention and a report of the process server was available on record on the basis of which defendant was proceeded ex parte.

The execution was filed on 27/06/2009. Notices were issued by registered A.D. post. The acknowledgement was received as per order sheet dated 3/02/2010 but defendant/judgment debtor had not appeared. Therefore, Kurki warrant was issued against her. The Kurki warrant was returned though the judgment debtor does not wish any proceeding of Kurki and in this regard, report of the process server dated 29/05/2010 was available on record.

On 15/03/2017, again Kurki warrants were issued. On 20/02/2017, defendant/appellant appeared in the execution proceedings and filed an application under Order 9 Rule 13.

It has come on record that despite service, defendant did not appear in the case. Section 5 of the Limitation Act provides that on showing sufficient cause, de